Citation Nr: 1422974
Decision Date: 05/21/14 Archive Date: 05/29/14
DOCKET NO. 10-49 141 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Nashville, Tennessee
THE ISSUES
1. Whether new and material evidence has been received to reopen a previously denied claim of entitlement to service connection for hearing loss.
2. Whether new and material evidence has been received to reopen a previously denied claim of entitlement to service connection for depression and adjustment disorder.
3. Entitlement to service connection for an acquired psychiatric disorder other than PTSD, to include depression, adjustment disorder, and paranoid schizophrenia with sleep impairment and anxiety.
4. Entitlement to service connection for diabetes mellitus.
5. Entitlement to service connection for vision problems.
6. Entitlement to service connection for residuals of a fracture of the left clavicle.
7. Entitlement to an increased rating for mechanical low back pain, currently rated as 10 percent disabling.
8. Entitlement to an increased rating for right knee degenerative joint disease (DJD), currently rated as 10 percent disabling.
9. Entitlement to an increased rating for left knee DJD, currently rated as 10 percent disabling.
10. Entitlement to a compensable rating prior to January 28, 2012 and in excess of 10 percent from that date for residuals of right index finger fracture.
11. Entitlement to an increased (compensable) evaluation for foreign body in the left foot.
12. Entitlement to a total disability rating for compensation purposes based upon individual unemployability due to service-connected disabilities (TDIU).
REPRESENTATION
Appellant represented by: Andrew L. Wener, Attorney
WITNESSES AT HEARING ON APPEAL
Appellant and a friend
ATTORNEY FOR THE BOARD
K. Hughes, Counsel
INTRODUCTION
The Veteran served on active duty from July 1972 to April 1981 and from February 1983 to April 1994.
These matters come before the Board of Veterans' Appeals (Board) on appeal from an October 2009 rating decision by a Regional Office (RO) of the Department of Veterans Affairs (VA) which denied all the issues on appeal with the exception of the claim for an increased rating for residuals of a right index finger fracture. The Veteran's notice of disagreement as to the October 2009 rating decision was received in October 2009. A statement of the case was issued in October 2010, and a substantive appeal was received in November 2010. The claim for an increased rating for residuals of a right index finger fracture was denied by a September 2010 rating decision. A notice of disagreement was received in October 2010, a statement of the case was issued in February 2012 and substantive appeal was received in May 2012.
In July 2012, a Travel Board hearing was held before the undersigned Veterans Law Judge; a transcript of the hearing is included in the Veteran's claims file.
The Board has re-characterized the claim for an acquired psychiatric disability as it appears on the cover page of this document. The Board notes that the Veteran has been diagnosed with depression, adjustment disorder, and paranoid schizophrenia with sleep impairment and anxiety, and finds that the re-characterization is in keeping with the United States Court of Appeals for Veterans Claims' (Court) decision in Clemons v. Shinseki, 23 Vet. App. 1 (2009), which mandates that the scope of a mental health disability claim include any mental disability that may reasonably be encompassed by the claimant's description of the claim, reported symptoms, and other information of record. [Notably, PTSD is excluded from consideration by the Board because it has been previously denied in an unappealed June 2004 rating decision.]
Regarding the hearing loss and depression and adjustment disorder claim, regardless of the RO's decision not to reopen these matters, the Board is nevertheless required to address the issue of reopening to determine whether new and material evidence has been submitted. See Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001) (reopening after a prior unappealed RO denial).
The issues of service connection for hearing loss and an acquired psychiatric disorder (under a merits analysis), diabetes mellitus, vision problems, residuals of a fracture of the left clavicle and entitlement to TDIU are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ).
FINDINGS OF FACT
1. The RO denied service connection for hearing loss and depression and adjustment disorder in June 2004 and notified the Veteran of the decision and his appellate rights at that time; the Veteran did not file a notice of disagreement and new and material evidence was not received within one year.
2. Since the final June 2004 rating decision, certain evidence relating to unestablished facts necessary to substantiate the claims, which is neither cumulative nor redundant of evidence previously considered, has been received to reopen the claims for service connection for hearing loss and depression and adjustment disorder.
3. Throughout the appeal period, the Veteran's mechanical low back pain is not shown to have been manifested by forward flexion of the thoracolumbar spine limited to 60 degrees or less; by combined range of motion of the thoracolumbar spine limited to 120 degrees or less; or by muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis; separately ratable neurological symptoms and incapacitating episodes were not shown.
4. Throughout the appeal period, the Veteran's service-connected right knee DJD has been manifested by pain; compensable limitations of flexion or extension, ankylosis, recurrent subluxation or lateral instability, and symptomatic cartilage removal are not shown.
5. Throughout the appeal period, the Veteran's service-connected left knee DJD has been manifested by pain; compensable limitations of flexion or extension, ankylosis, recurrent subluxation or lateral instability, and symptomatic cartilage removal are not shown.
6. From January 20, 2010, the date of receipt of the Veteran's claim for an increased rating, his residuals of a right index finger fracture have been manifested by arthritis and objective pain on motion; neither ankylosis of any joint of the index finger, nor amputation of any part of the finger, is demonstrated.
7. Throughout the appeal period, the Veteran's foreign body in the left foot has not resulted in disability comparable to a moderate foot injury.
CONCLUSIONS OF LAW
1. The June 2004 rating decision denying service connection for hearing loss and depression and adjustment disorder is final. 38 U.S.C.A. § 7105(c) (West 2002).
2. New and material evidence has been received to reopen the claims of service connection for hearing loss and depression and adjustment disorder. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156(a) (2013).
3. A rating in excess of 10 percent is not warranted for the Veteran's service-connected mechanical low back pain. 38 U.S.C.A. §§ 1155 , 5107 (West 2002); 38 C.F.R. §§ 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes (Codes) 5295 (in effect prior to September 26, 2003), 5237-5243 (effective September 26, 2003).
4. A rating in excess of 10 percent for right knee DJD is not warranted. 38 U.S.C.A. §§ 1155 , 5107 (West 2002); 38 C.F.R. §§ 4.40, 4.45, 4.59, 4.71a, Codes 5010-5260 (2013).
5. A rating in excess of 10 percent for left knee DJD is not warranted. 38 U.S.C.A. §§ 1155 , 5107 (West 2002); 38 C.F.R. §§ 4.40, 4.45, 4.59, 4.71a, Codes 5010-5260 (2013).
6. The criteria for an increased 10 percent rating for residuals of a right index finger fracture are met from January 20, 2010. 38 U.S.C.A. §§ 1155, 5107(b) (West 2002); 38 C.F.R. §§4.40, 4.45, 4.59, 4.71a, Code 5229 (2013).
7. The criteria for a compensable rating for the foreign body in the Veteran's left foot have not been met. 38 U.S.C.A. §§ 1155, 5107(b) (West 2002); 38 C.F.R. §§4.40, 4.45, 4.59, 4.71a, Code 5284 (2013).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
Veterans Claims Assistance Act of 2000 (VCAA)
The VCAA, in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). The VCAA applies to the instant claims.
Regarding the matters of new and material and the reopening of the claims of service connection for hearing loss and depression and adjustment disorder, further discussion of the VCAA is not necessary at this point. The matter of VCAA compliance with regard to the matter will be addressed in a future merits decision after action on the issue is undertaken as directed in the remand section of this decision.
Regard the claims for increase, VCAA notice requirement is generic notice, namely notice of the type of evidence needed to substantiate the claim, i.e., evidence demonstrating a worsening or increase in severity of the disability and the effect such has on employment, as well as general notice regarding how disability ratings and effective dates are assigned. See Vazquez-Flores v. Shinseki, 580 F. 3d 1279 (Fed. Cir, 2009). Letters in February 2009 and March 2009 provided the Veteran the generic notice required as to his low back, bilateral knee and left foot claims. Further, letters in January 2010 and July 2010 provided such notice as to his right index finger claim. It is not alleged that he is/has been prejudiced by a notice defect. See Goodwin v. Peake, 22 Vet. App. 128, 137 (2008); see also Shinseki v. Sanders, 129 S. Ct. 1696 (2009) (discussing prejudicial error).
The Veteran's pertinent treatment records have been secured. The RO arranged for VA examinations in June 2009 and January 2012 for the low back, bilateral knee and left foot claims and February 2010 and January 2012 for the right index finger claim. A review of the examination reports show sufficient clinical findings and discussion of the history and features of the disabilities to provide probative medical evidence adequate for rating purposes. The Board finds that the record as it stands includes adequate competent evidence to allow the Board to decide this matter, and that no further development of the evidentiary record is necessary. See generally 38 C.F.R. § 3.159(c)(4). The Veteran has not identified any pertinent evidence that remains outstanding.
In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court held that 38 C.F.R. § 3.103(c)(2) requires that the Veterans Law Judge (VLJ) who conducts a hearing fulfill two duties to comply with the above regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Here, during the hearing, the VLJ clearly discussed the matter of identifying the issues on appeal and the Veteran was assisted by an attorney. Neither the Veteran nor his attorney has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2) nor identified any prejudice in the conduct of the Board hearing. The Veteran's attorney and the VLJ asked questions to draw out the evidence which related to the severity and symptomatology of the Veteran's disabilities. As such, the Board finds that, consistent with Bryant, the VLJ complied with the duties set forth in 38 C.F.R. § 3.103(c)(2) and that any error in notice provided during the Veteran's hearing constitutes harmless error. The Board finds that to send the Veteran a letter and ask him to submit more evidence detailing the nature and severity of his disabilities would be "an idle and useless formality." NLRB v. Wyman-Gordon Co., 394 U.S. 759, 766 n. 6 (1969). VA has complied with the notice and assistance requirements and the Veteran is not prejudiced by a decision at this time.
Legal Criteria, Factual Background and Analysis
At the outset, it is noted that the Board has reviewed all of the evidence in the Veteran's claims file. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence of record. Indeed, the Federal Circuit has held that the Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Therefore, the Board will summarize the relevant evidence where appropriate.
When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990).
Petition to Reopen
The Veteran's original claims of entitlement to service connection for hearing loss and depression and adjustment disorder were denied by a June 2004 rating decision on the basis that there was no evidence of hearing loss and no evidence of a nexus between the Veteran's depression and adjustment disorder and active service. Although notified of the RO's decision and of his right to appeal, the Veteran did not initiate an appeal of that decision. See 38 C.F.R. § 20.200. Moreover, he did not submit new and material evidence within one year of the June 2004 rating decision. Accordingly, the June 2004 rating decision became final. 38 U.S.C.A. § 7105; 38 C.F.R. § 20.1103.
However, a final decision shall be reopened if new and material evidence is presented. 38 U.S.C.A. § 5108. New evidence means existing evidence not previously submitted to agency decision makers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a).
The standard of whether new and material evidence raises a reasonable possibility of substantiating a claim is a "low threshold." See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). Furthermore, consideration is not limited to whether the newly submitted evidence relates specifically to the reason the claim was last denied, but instead should include whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering the Secretary's duty to assist or through consideration of an alternative theory of entitlement. Id. at 118.
For the purpose of establishing whether new and material evidence has been received, the credibility of the evidence, but not its weight, is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). However, VA is not bound to consider credible the patently incredible. Duran v. Brown, 7 Vet. App. 216 (1994).
At the July 2012 Travel Board hearing, the Veteran testified that his hearing loss had become worse and he is unable to understand spoken voice unless he can see the lips of the person speaking to him. The Veteran further testified that his service connected knee, back and shoulder problems have caused his depression. His testimony is presumed credible for the purposes of reopening. See Justus, supra.
Assuming as required for reopening that the Veteran has hearing loss and his psychiatric symptoms are secondary to his service connected disabilities, his testimony would address the questions of whether he has a current hearing loss disability and whether his depression is related to service (including secondary to a service connected disability). His testimony pertains to unestablished facts necessary to substantiate the claims of service connection for hearing loss and depression and adjustment disorder and raises a reasonable possibility of substantiating such claim. Consequently, particularly in light of the "low threshold" standard for reopening outlined by the Court in Shade v. Shinseki, 24 Vet. App. 110 (2010), the Board finds that the Veteran's sworn testimony is new and material evidence, and that the claims of service connection for hearing loss and depression and adjustment disorder must be reopened. De novo consideration of these claims is addressed in the remand below.
Increase Rating
Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1.
In evaluating the severity of a particular disability, it is essential to consider its history. 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7.
Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary importance. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, separate ratings may be assigned for separate periods of time based on the facts found. This practice is known as "staged" ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). The relevant temporal focus for adjudicating an increased rating claim is on the evidence concerning the state of the disability from the time period one year before the claim was filed until VA makes a final decision on the claim. Id.
When an evaluation of a disability is based upon limitation of motion, the Board must also consider, in conjunction with the otherwise applicable Diagnostic Code, any additional functional loss the veteran may have sustained by virtue of other factors as described in 38 C.F.R. §§ 4.40 and 4.45. DeLuca v. Brown, 8 Vet. App. 202, 206 (1995). Such factors include more or less movement than normal, weakened movement, excess fatigability, incoordination, pain on movement, swelling, and deformity or atrophy from disuse. A finding of functional loss due to pain must be supported by adequate pathology and evidenced by the visible behavior of the veteran. 38 C.F.R. § 4.40.
Low Back
The Veteran's mechanical low back pain is rated under Code 5295 for lumbosacral strain. However, under the General Rating Formula for Rating Diseases and Injuries of the Spine (General Rating Formula, outlined below), which became effective September 26, 2003, i.e, prior to the Veteran's February 2009 claim for an increased rating, lumbosacral strain is rated under Code 5237.
Under the General Rating Formula, with or without symptoms such as pain, stiffness or aching in the area of the spine affected by residuals of injury or disease, the following ratings will apply: A 10 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, combined range of motion for the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour. A 20 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 40 percent rating is warranted for forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine, and a 100 percent rating is warranted for unfavorable ankylosis of the entire spine.
There are several notes following the General Rating Formula criteria, which provide the following: First, associated objective neurological abnormalities are to be rated separately under an appropriate diagnostic code. Second, for purposes of VA compensation, normal forward flexion of the thoracolumbar spine is 0 to 90 degrees, extension is 0 to 30 degrees, left and right lateral flexion is 0 to 30 degrees, and left and right lateral rotation is 0 to 30 degrees. The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation. The normal combined range of motion of the thoracolumbar spine is to 240 degrees. Third, in exceptional cases, an examiner may state that, because of age, body habitus, neurological disease, or other factors not the result of disease or injury of the spine, the range of motion of the spine in a particular individual should be considered normal for that individual, even though it does not conform to the normal range of motion stated in the regulation. 38 C.F.R. § 4.71a.
Degenerative arthritis of the spine is also evaluated pursuant to the General Rating Formula. 38 C.F.R. § 4.71a, Diagnostic Code 5242.
In his written statements and hearing testimony, the Veteran has complained of back pain and spasms. Although his outpatient clinical records show treatment for orthopedic complaints, they are silent for treatment for low back pain.
On June 2009 VA examination, the Veteran complained of lumbar spine pain which he rated 7 (on a scale of 10). He also reported associated right leg numbness and tingling, twice weekly flare-ups due to standing or sitting too long which last about 30 minutes and are alleviated with rest, and bowel changes since his cholecystectomy 20 years previously. He had not been ordered to be on bed rest during the last 12 months.
Examination of the lumbar spine showed tenderness to palpation over the lumbosacral junction on the midline. On active range of motion testing, the Veteran had 0-70 degrees of painless flexion, extension to 20 degrees with pain at 10-20 degrees, 0-20 degrees of rotation with pain throughout and 0-30 degrees of bilateral lateral bend with pain from 15-30 degrees. No change in pain or range of motion was noted after repetitive range of motion. Strength was 5/5 in the bilateral lower extremities, he was sensate in light touch from L3 to S2, Achilles and patellar tendon reflexes were 2+, dorsalis pedis pulse was palpable bilaterally and straight leg test was negative bilaterally. X-ray studies showed mild degenerative changes throughout. The diagnosis was mild lumbar degenerative disease.
On January 2012 VA back examination, the Veteran complained of lumbar spine pain and was noted to use a cane. Range of motion testing showed 70 degrees of flexion (with painful motion beginning at 70 degrees), extension to 20 degrees (with painful motion beginning at 20 degrees), and full (to 30 degrees) of painless bilateral lateral flexion and rotation. There was no change in the range of motion after performing repetitive-use testing; however, functional loss resulting in less movement than normal, weakened movement and pain on movement was noted. Muscle strength was 5/5 and sensory was normal throughout. Straight leg raising was negative and the Veteran had no radicular pain or any other signs or symptoms due to radiculopathy or other neurologic abnormalities. He also had no intervertebral disc syndrome.
Throughout the appeal period, a review of the record does not show that the criteria for an evaluation in excess of 10 percent for mechanical low back pain are met or more nearly approximated. That is, objective findings do not show forward flexion greater than 30 degrees but not greater than 60 degrees; combined range of motion of the thoracolumbar spine not greater than 120 degrees; or muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour. Evidence of record does not show additional loss of motion on repetitive use and the most recent examination did not document any functional loss or impairment of the thoracolumbar spine. Objective findings simply do not support a higher evaluation based on functional impairment due to pain on motion or other factors. DeLuca.
The Board acknowledges the Veteran's reports of flare-ups, but there is no objective evidence of intervertebral disc syndrome. The Board further notes that the evidence of record does not suggest incapacitating episodes as defined by VA regulations. On review, there is no basis for evaluating the Veteran's mechanical low back pain based on incapacitating episodes. See 38 C.F.R. § 4.71a, Diagnostic Code 5243.
Pursuant to the rating schedule, associated neurologic abnormalities are to be separately evaluated. See General Rating Formula, Note (1). Although the Veteran has complained of right leg numbness and tingling, examinations of record do not show diagnosed radiculopathy of the lower extremities or bowel or bladder dysfunction attributed to the service-connected back disability and separate evaluations are not warranted.
Knees
The Veteran's DJD of the knees are separately rated as 10 percent disabling under Codes 5010-5260 for arthritis with limitation of flexion. When the limitation of motion is noncompensable under the appropriate diagnostic code, a 10 percent rating is for application for each such major joint affected by limitation of motion, to be combined, not added under Code 5003. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. 38 C.F.R. § 4.71a, Code 5010-5003.
Flexion of the knee to 140 degrees is considered full and extension at 0 degrees is considered full. See 38 C.F.R. § 4.71, Plate II.
Flexion of the leg limited to 45 degrees warrants a 10 percent rating, flexion limited to 30 degrees warrants a 20 percent rating, and flexion limited to 15 degrees warrants a 30 percent rating. 38 C.F.R. § 4.71a, Code 5260. Extension limited at 10 degrees warrants a 10 percent rating, extension limited at 15 degrees warrants a 20 percent rating, extension limited at 20 degrees warrants a 30 percent rating, extension limited at 30 degrees warrants a 40 percent rating, and extension limited to 45 degrees warrants a 50 percent rating. 38 C.F.R. § 4.71a, Code 5261.
Recurrent subluxation or lateral instability of a knee is rated 10 percent when slight, 20 percent when moderate, and 30 percent when severe. 38 C.F.R. § 4.71a, Code 5257.
The VA General Counsel has held that a claimant who has arthritis and instability of a knee may be rated separately under Codes 5003 and 5257, while cautioning that any such separate rating must be based on additional disabling symptomatology. VAOPGCPREC 23-97 (July 1997); VAOPGCPREC 9-98, (August, 1998). Moreover, the General Counsel has also held that separate ratings under 38 C.F.R. § 4.71a, Code 5260 (limitation of flexion of the leg) and under Code 5261 (limitation of extension of the leg), may be assigned for disability of the same joint. VAOGCPREC 9-2004 (September 2004).
Consideration of other diagnostic codes for rating knee disability (5256, 5258, 5262, 5263) is inappropriate in this case as the Veteran's bilateral knee disabilities do not include the pathology required in the criteria for those Codes (ankylosis, dislocated semilunar cartilage, malunion or nonunion of tibia or fibula, or genu recurvatum). 38 C.F.R. § 4.71a.
The Veteran's written statements and hearing testimony reflect his complaints of bilateral knee pain.
On June 2007 VA examination, the Veteran complained of bilateral knee pain which he rated 7 (on a scale of 10). He reported using knee braces which provide moderate help. He can walk 30 minutes or 1/4 mile and reported flare-ups 5 to 6 times per month when he walks or bends too much. The Veteran also reported being unable to sit for a long period of time with his knees bent.
On examination, the knees were severely tender to palpation over the medial and lateral patellar facets and mildly tender to palpation over the medial and lateral joint line. The knees were stable to varus and valgus stress and Lachman, posterior drawer and McMurray were negative. Each knee had 0 degrees of extension to 120 degrees of flexion with pain from 100 - 120 degrees. There was no change in pain or range of motion of either knee after repetitive range of motion. X-ray studies showed severe patellofemoral arthritis of each knee. The left knee also showed mild changes on the medial and lateral joint line. The diagnoses were right knee severe patellofemoral arthritis and left knee tri-compartmental arthritis with severe patellofemoral arthritis.
VA treatment records show that the Veteran complained of bilateral knee pain in January 2010. He reported no trauma to either knee and no history of the knees locking. On examination of the knees, there was no swelling or gross deformities to visual inspection, skin was intact with no focal erythema and there was no soft tissue fullness or mass with palpation of the posterior aspects. No antalgic gait, palpable effusion, or bony abnormality was observed and the joints were warm to the touch. The knees were stable to varus and valgus stress - no joint laxity noted, and the extensor mechanisms were intact. Anterior and posterior drawers, McMurrays and patella grind were negative and there was no joint line tenderness verbalized. Positive crepitus was noted with flexion and extension. Active and passive range of motion was 0-110 degrees flexion and extension on the left and 0-115 degrees flexion and extension on the right, without difficulty. There was no locking, strength was 5/5 flexion and extension and the Veteran was grossly NVI (neurovascularly intact).
On January 2012 VA examination, the Veteran reported that his bilateral knee pain was continuing to worsen and he reported flare-ups as daily increase of pain. Bilateral knee range of motion was flexion to 120 degrees with pain beginning at 90 degrees and 0 degrees of extension. There was no objective evidence of painful motion. Range of motion on repetitive use was 120 degrees of flexion and 0 degrees of extension of each knee with no additional limitation of motion. His functional loss was less movement than normal and pain on movement of each knee. There was also tenderness or pain to palpation of both knees. Bilateral knee strength was 5/5 on flexion and extension, joint stability tests were normal and there was no evidence of subluxation or dislocation. He used a cane constantly for assistance with locomotion. The diagnosis was DJD, both knees.
Throughout the appeal period, the Veteran's DJD of the knees has been separately rated 10 percent. His treatment and examination reports do not show limitation of flexion to 30 degrees (so as to warrant a 20 percent rating under Code 5260) or limitation of extension at 15 degrees (so as to warrant a 20 percent rating under Code 5261) for either knee, even with consideration of factors such as pain and use (repetitive motion). Nor do they show compensable limitations of both flexion and extension. Accordingly, a rating in excess of 10 percent for DJD of either knee under either Code 5260 or Code 5261 (or based on a combination of ratings under these two codes) is not warranted.
The Board has also considered the possibility of separate ratings for limitation of motion and for subluxation/instability which may be awarded where there is both (X-ray evidenced) arthritis and instability of a knee. See VAOPGCPREC 23-97 (1997). However; subluxation or lateral instability has not been found on any examination or noted in any treatment record. All testing for ligamentous laxity has been negative. Consequently, separate compensable ratings for instability would be inappropriate.
Additional factors that could provide a basis for an increase have also been considered; however, it is not shown that the Veteran has any loss of knee function beyond that currently compensated. 38 C.F.R. §§ 4.40, 4.45; Deluca v. Brown, 8 Vet. App. 202, 206 (1995).
In summary, no schedular criteria for the next higher, 20 percent, rating for left or right knee disability are met (or approximated) at any time during the appeal period, and such rating is not warranted.
Right Index Finger
Limitation of motion of individual digits of the hand is evaluated under 38 C.F.R. § 4.71a, DCs 5228-5230. Code 5229 for limitation of motion of the index or long finger of either hand assigns a noncompensable rating with evidence of a gap of less than one inch (2.5 cm.) between the fingertip and the proximal transverse crease of the palm, with the finger flexed to the extent possible, and; extension is limited by no more than 30 degrees. A maximum 10 percent evaluation is assigned with evidence of a gap of one inch (2.5 cm.) or more between the fingertip and the proximal transverse crease of the palm, with the finger flexed to the extent possible, or; with extension limited by more than 30 degrees. Id.
The diagnostic codes that evaluate the digits of the hands distinguish between the major (dominant) extremity and the minor (non-dominant) extremity. See 38 C.F.R. § 4.69 (2013). The medical evidence shows that the veteran is right handed; therefore, the criteria referencing the major extremity are for consideration in this case.
The Veteran's claim for an increased rating for residuals of right index finger fracture was received on January 20, 2010.
The Veteran's written statements, hearing testimony and February 2010 and January 2012 VA examination reports reflect his complaints of right index finger pain. Further, in his October 2010 notice of disagreement, the Veteran stated that he is unable to type as a result of his right index finger.
On February 2010 VA examination the Veteran reported right proximal interphalangeal joint pain, swelling and snapping over the bony prominence on the ulnar aspect of the proximal phalanx. He complained that constant use and cold and rainy weather will cause flare-ups. He also reported that he is right handed. On examination, the examiner noted a painful prominence measuring 5x5 millimeters over the ulnar aspect of the proximal distal portion of the proximal phalanx. The Veteran had full range of motion of the PIP (proximal interphalangeal joint) with pain throughout the arc of motion and a snapping of his soft tissues over this bony prominence. Range of motion and pain were equal on repeat range of motion testing and there was no laxity in this joint to varus and valgus stress. The range of motion of the distal interphalangeal joint was also good at 0 degrees extension and 90 degrees flexion with no pain or additional functional loss upon repeat testing. The Veteran's hand functioned well as a unit and he was able to bring his thumb to the tips of his digits as well as all of his fingers to his palmer crease. He had 5/5 strength in flexion and extension in the index finger and in his remaining joints. X-ray showed a bony prominence on the ulnar aspect of the distal portion of the proximal phalanx on the right index finger with joint space narrowing of the proximal interphalangeal joint. The assessment was right index finger fracture with malunion, residual bony prominence, and posttraumatic arthritis of the proximal interphalangeal joint, severe.
On January 28, 2012 VA examination, Veteran reported daily worsening of pain and decreased function. The examiner noted limitation of motion or painful motion of the right index finger. Although there was no gap between the thumb pad and the fingers, there was a gap of less than 1 inch (2.5 centimeters (cm)) between the right index finger tip and the proximal transverse crease of the palm. Painful motion began at a gap of less than 1 inch (2.5 cm). There was no additional functional loss after repeat range of motion testing. There was no pain on palpation, hand grip was 5/5 and there was no ankylosis. X-ray testing showed degenerative or traumatic arthritis.
A February 2012 rating decision granted an increased rating for residuals of right index finger fracture effective from January 28, 2012, the date of the VA examination.
The Board notes that the Veteran is competent to report his symptoms as to his right index finger. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d. 1331 (Fed. Cir. 2006). Additionally, the February 2010 and January 2012 VA examination reports both show findings of degenerative or traumatic arthritis.
The Board observes that the provisions of 38 C.F.R. § 4.59, which relate to painful motion, are not limited to arthritis and must be considered when raised by the claimant or when reasonably raised by the record. Burton v. Shinseki, 25 Vet. App. 1 (2011). As Code 5229 provides for a 10 percent rating for limitation of motion of the index, the Board finds that a rating of 10 percent is warranted from January 20, 2010, the date of receipt of his claim for an increased rating, for the Veteran's service-connected residuals of right index finger fracture. See also 38 C.F.R. § 4.71a, Codes 5003, 5010.
The Board notes that a 10 percent rating is the maximum schedular rating for the Veteran's service-connected residuals of right index finger fracture. See 38 C.F.R. § 4.71a, Code 5229; see also Spencer v. West, 13 Vet. App. 376, 382 (2000); Johnston v. Brown, 10 Vet. App. 80, 85 (1997) (holding that 38 C.F.R. § 4.40 and 4.45 do not apply and that a higher rating is not warranted for painful motion or functional loss when the maximum schedular disability rating based on limitation of motion is in effect). Even with consideration of painful motion and other factors, such as decreased grip, a higher rating is not warranted as even unfavorable ankylosis of the index finger warrants a maximum 10 percent rating. See 38 C.F.R. § 4.71a, Code 5225. Although the Veteran has limitation of motion of the right index finger, he retains at least some motion in the finger as well as functional use, and ankylosis was not found on VA examination. Additionally, the Veteran's disability picture does not approximate amputation of the right index finger, which could warrant a higher rating based on the location of the amputation. See 38 C.F.R. § 4.71a, Code 5153. Further, the February 2010 and January 2012 VA examination reports show that there is no resulting limitation of motion of other digits or overall function of the right hand at any point during the appeal. Indeed, the Veteran has not contended otherwise. As such, there is no schedular basis for a rating higher than 10 percent for his service-connected residuals of right index finger fracture.
Finally, as the Board finds the Veteran's residuals of right index finger fracture has continuously been 10 percent disabling throughout the appeal period, staged ratings are not indicated. Hart v. Mansfield, 21 Vet. App. 505 (2007).
Left Foot
The Veteran's left foot foreign body has been evaluated under 38 C.F.R. § 4.71a, Code 5284 for other foot injuries which provides a 10 percent rating when there is a moderate foot injury, a 20 percent rating when there is a moderately severe foot injury, and a 30 percent rating when there is a severe foot injury.
The Veteran's written statements and hearing testimony reflects his complaints of foot pain and difficulty walking. VA and private treatment records are silent for complaints of or treatment for the feet.
On June 2009 VA examination, the Veteran reported a 35 year history of bilateral foot pain described as a sharp, stabbing pain located in his arch. Examination of the left foot showed tenderness to palpation over the medial cord of the plantar fascia as origination of his plantar fascia. He was nontender to palpation over all of the bony prominences and had no instability of the ankles. Range of motion testing showed 15 degrees of dorsiflexion and 30 degrees of plantar flexion without pain. Inversion was to 15 degrees and eversion was to 10 degrees with pain throughout the entire range of motion. There was no change in pain or range of motion on repeat testing. There was no lymphadenopathy or evidence of abnormal weight bearing and the arches were well maintained. Left foot X-ray showed some diffuse degenerative changes as well as a calcification between the first and second metatarsal. The diagnoses included right plantar fasciitis, left plantar fasciitis and left foot foreign body/teterotopic ossification. The examiner opined that the Veteran's left foot foreign body may be contributing to his foot pain.
On January 2012 VA examination, the diagnosis was left foot foreign body. The Veteran did not have other foot disabilities (other than flatfoot) and it was noted that he uses a cane for assistance with locomotion.
The Veteran has reported a history of bilateral foot pain and his complaints have been diagnosed as bilateral plantar fasciitis. Service connection is not established for plantar fasciitis (and the Veteran does not claim service connection for such disability). The Board has considered whether he is entitled to a compensable evaluation on the basis of functional loss due to pain. However, the Veteran has not reported pain specific to the left foot; rather, he has complained of pain in both feet which has been attributed to an unrelated disability. There is no indication of impairment of foot function due to the left foot foreign body.
Thus, neither the lay nor medical evidence reflects the functional equivalent of symptoms required for a compensable evaluation. After having reviewed the evidence, the Board finds that a compensable rating is not warranted for the Veteran's left foot foreign body under Code 5284, as it is not the equivalent of a moderate foot injury. Accordingly, a compensable rating for left foot foreign body is not warranted for any time during the appeal period.
Extraschedular
The above determinations are based upon application of the pertinent provisions of VA's rating schedule. The Board finds that the record does not reflect that the Veteran's service-connected disabilities are so exceptional or unusual as to warrant the assignment of higher ratings on an extraschedular basis. See 38 C.F.R. § 3.321(b)(1). The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluation for that service-connected disability is inadequate. See Thun v. Peake, 22 Vet. App. 111 (2008). In this regard, there must be a comparison between the level of severity and symptomatology of the claimant's service- connected disability with the established criteria found in the rating schedule for that disability. If the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule and the assigned schedular evaluation is therefore adequate, and no extraschedular referral is required. Id.; see also VAOGCPREC 6-96 (Aug. 16, 1996). Otherwise, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, VA must determine whether the claimant's exceptional disability picture exhibits other related factors, such as those provided by the extraschedular regulation 38 C.F.R. § 3.321(b)(1) as "governing norms" (which include marked interference with employment and frequent periods of hospitalization).
In this case, the Board finds that each of the rating criterion used to evaluate the Veteran's service-connected disabilities reasonably describe his disability level and symptomatology for each of the disabilities. The schedular criteria, in general, are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1. Therefore, the Veteran's disability pictures as to each claim is contemplated by the rating schedule and no extraschedular referrals are required. 38 C.F.R. § 3.321(b)(1); Bagwell v. Brown, 9 Vet. App. 337 (1996); Shipwash v. Brown, 8 Vet. App. 218 (1995).
ORDER
The Veteran's claims of entitlement to service connection for hearing loss and depression and adjustment disorder have been reopened. To this extent, the appeal is granted, subject to the directives set forth in the following remand section of this decision.
Entitlement to a disability rating in excess of 10 percent for mechanical low back pain is not warranted.
Entitlement to a disability rating in excess of 10 percent for right knee DJD is not warranted.
Entitlement to a disability rating in excess of 10 percent for left knee DJD is not warranted.
A 10 percent rating (but no higher) for residuals of right index finger fracture is warranted effective from January 20, 2010. To this extent, the appeal is granted, subject to regulations governing the payment of monetary awards.
Entitlement to a compensable rating for foreign body in the left foot is not warranted.
REMAND
Hearing Loss and Acquired Psychiatric Disorder
Regarding the reopened claims of entitlement to service connection for hearing loss and an acquired psychiatric disorder other than PTSD, to include depression, adjustment disorder, and paranoid schizophrenia with sleep impairment and anxiety, further development is necessary to ensure that VA's duty to assist the Veteran is met.
For VA purposes, a hearing loss disability is defined as: "when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent." 38 C.F.R. § 3.385.
The STRs show that the Veteran complained of hearing loss, was issued ear plugs and followed by a hearing conservation program during service. Therefore, it reasonable to accept that the Veteran was exposed to noise trauma during service. Given the in-service noise trauma and his July 2012 Travel Board testimony that his hearing acuity has decreased, the "low threshold" standard outlined in McLendon is met. McLendon v. Nicholson, 20 Vet. App. 79 (2006). As such, a VA nexus opinion is necessary to determine the nature and likely etiology of any hearing loss disability. See 38 C.F.R. § 3.159(c)(4).
Further, during his July 2012 Travel Board hearing, the Veteran testified that his service connected knee, back and shoulder problems have caused his depression. A VA nexus opinion is also necessary to determine the nature and likely etiology of any acquired psychiatric disability. See 38 C.F.R. § 3.159(c)(4).
Disability which is proximately due to or the result of a service-connected disease or injury shall be service connected. 38 C.F.R. § 3.310(a) (as in effect before and from October 10, 2006). The Board notes the Veteran has not been provided appropriate notice required by the VCAA regarding service connection on a secondary basis.
Diabetes
If a veteran was exposed to a herbicide agent (to include Agent Orange) during active service, type II diabetes shall be service-connected if the requirements of 38 C.F.R. § 3.307(a)(6) are met, even though there is no record of such disease during service, provided that the rebuttable presumption provisions of 38 C.F.R. § 3.307(d) are also satisfied. 38 C.F.R. § 3.309(e).
The Veteran claims exposure to Agent Orange while serving aboard the USS Coral Sea during the Vietnam era. In a July 2009 statement, he reported going ashore in Vietnam from December 14-15, 1972 to deliver supplies by helicopter. [The service department has certified that it is unable to document that an aircraft departed the USS Coral Sea to any base in the Republic of Vietnam or that the Veteran departed ship.] Further, during his July 2012 Travel Board hearing, the Veteran testified that he also went ashore in the Philippines, Korea and Thailand.
On January 25, 2011, VA amended its regulations to provide presumptive herbicide exposure for any Veteran who served between April 1, 1968, and August 31, 1971, in a unit determined by VA and the DoD to have operated in an area in or near the Korean DMZ in which herbicides were applied. See 38 C.F.R. § 3.307(a)(6)(iv); see also, 76 Fed. Reg. 4,245-4,250 (Jan. 25, 2011). As the Veteran's military service began in July 1972, further development of Agent Orange exposure during such service is not warranted.
However, VA has also developed specific procedures to determine whether a Veteran was exposed to herbicides in locations other than the Republic of Vietnam or along the demilitarized zone (DMZ) in Korea (to specifically include Thailand). VA's Adjudication Procedure Manual, M21-1MR, Part IV, Subpart ii, Chapter 2, Section C, para. 10(n) directs that a detailed statement of the Veteran's claimed herbicide exposure be sent to the Compensation and Pension (C&P) Service with a request for review of the inventory of herbicide operations maintained by the Department of Defense (DOD) to determine whether herbicides were used or tested as alleged. If the exposure is not verified, a request should then be sent to the U.S. Army and Joint Services Records Research Center (JSRRC) for verification. See VBA Fast Letter 09-20 (May 6, 2009). M21-1MR also specifies when herbicide exposure may be conceded where a Veteran served in Thailand during the Vietnam era. As the allegation of herbicide exposure in Thailand cannot be resolved based on the current record, further development of pertinent evidence is necessary.
Vision
The STRs show that the Veteran sought treatment for subjective sensation of foreign body in his left eye after dust blew into his eyes. Given the in-service eye treatment and his July 2012 Travel Board testimony that he now sees spots and has a lot of haziness, the "low threshold" standard outlined in McLendon is met. As such, a VA nexus opinion is necessary to determine the nature and likely etiology of any eye disorder. See 38 C.F.R. § 3.159(c)(4).
Left Clavicle
VA treatment records show that the Veteran was treated in the Methodist Central Emergency Room in April 2008 for a left clavicle injury sustained as a result of a motorcycle accident. These records have not been obtained and are not available for review. Records of such treatment would be pertinent and perhaps critical evidence regarding the left clavicle claim and must be secured.
Further, the record suggests that the Veteran receives ongoing VA treatment. The most recent records for review (on Virtual VA) are dated in July 2012. Records of VA treatment are constructively in evidence and must be secured.
TDIU
Finally, because the claim of entitlement to a TDIU rating is inextricably intertwined with the claims of service connection, appellate consideration of entitlement to a TDIU rating is deferred pending resolution of the service connection claims. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991).
Accordingly, the case is REMANDED for the following action:
1. The RO must provide appropriate VCAA notice as to the information and evidence necessary to substantiate the claim for service connection for an acquired psychiatric disorder other than PTSD, to include depression, adjustment disorder, and paranoid schizophrenia with sleep impairment and anxiety, on a secondary basis under the provisions of 38 C.F.R. § 3.310 (2013).
2. The RO should ask the Veteran to identify all private providers of treatment for his hearing loss, diabetes, vision problems and psychiatric and left clavicle disabilities, and to provide any authorizations necessary for VA to obtain records of any such private treatment, to specifically include from Methodist Central Emergency Room in April 2008. The RO should obtain complete clinical records (those not yet secured) from all sources identified. If any private provider does not respond to the RO's request for records, the Veteran and his representative should be so advised, and reminded that ultimately it is his responsibility to ensure that private records are received.
3. The RO should make arrangements to obtain all outstanding (not already contained in the claims file) VA treatment records since July 2012, the most recent VA treatment records available for review.
4. The RO should take appropriate action following VA's protocol for verifying exposure to herbicides outside of Vietnam, specifically in Thailand as claimed by the Veteran. Specifically, the RO should contact the JSRRC, provide the verified particulars of the Veteran's foreign service and specifically request verification of the claimed herbicide exposure in Thailand.
5. The RO should make a finding regarding whether the Veteran was exposed to Agent Orange while he served in Thailand.
6. If it is found that the Veteran was exposed to Agent Orange in Thailand, the RO should arrange for an examination by an appropriate specialist to determine the etiology of his diabetes. The examiner must review the record in conjunction with the examination. Based on the examination and review of the record the examiner should provide an opinion as to whether it is it is at least as likely as not (50% or better probability) that the Veteran's diabetes mellitus was incurred or aggravated in service, to include presumed exposure to Agent Orange. The examiner must explain the rationale for all opinions, citing to supporting factual data.
7. After actions 2 and 3 have been completed, the RO should arrange for the Veteran to be examined by an appropriate examiner to determine the nature and etiology of any eye disability. The examiner must review the record in conjunction with the examination. Based on the examination and review of the record, the examiner should respond to the following:
a) Please identify (by medical diagnosis) all eye pathology and associated impairment of function found. Any eye disability that is solely due to refractive error should be so identified.
b) Identify (as to each eye disability entity diagnosed) the most likely etiology for the Veteran's eye disability. Specifically, is it at least as likely as not (a 50 % or better probability) that such was manifested during service or is otherwise causally related to service, to include eye treatment therein?
The examiner should discuss any competent lay evidence regarding continuity since service of relevant complaints (e.g., pertinent symptoms, etc.), and to not base a negative opinion solely on the lack of evidence of a vision disorder during service. All opinions and conclusions expressed must be supported by a complete rationale in the report.
8. After actions 2 and 3 have been completed, the RO should arrange for the Veteran to be examined by an appropriate examiner to determine the etiology of his hearing loss. The examiner must review the record in conjunction with the examination. Based on the examination, review of the record and consideration of the Veteran's accounts (i.e., that he has noticed diminished hearing acuity since service), the examiner should provide an opinion as to whether it is at least as likely as not (a 50% or higher degree of probability) that any currently diagnosed hearing loss was manifested during service or is otherwise causally related to service, to include noise exposure therein?
A detailed rationale should be furnished to specifically include discussion of the significance, if any, of any upward shift of threshold levels during service which might show a decrease in hearing acuity, even if actual hearing loss disability was not shown during service.
9. After actions 1, 2 and 3 have been completed, the Veteran should be scheduled for an appropriate VA psychiatric examination to ascertain the nature and etiology of his claimed acquired psychiatric disability other than PTSD, to include depression, adjustment disorder, and paranoid schizophrenia with sleep impairment and anxiety. The examiner must review the record in conjunction with the examination. Based on the examination and review of the record, the examiner should respond to the following:
a) Please identify (by medical diagnosis) each psychiatric disability entity, other than PTSD, found. Specifically, does the Veteran have depression, adjustment disorder, and paranoid schizophrenia with sleep impairment and anxiety?
a) As to each psychiatric diagnosis other than PTSD, please indicate whether such entity is at least as likely as not (a 50% or higher degree of probability) related to the Veteran's military service/events or manifestations noted therein.
b) Is it at least as likely as not (50% or higher degree of probability) that the Veteran's acquired psychiatric disability is proximately due to or the result of his service-connected disabilities?
c) Is it at least as likely as not (50% or higher degree of probability) that the Veteran's acquired psychiatric disability has been aggravated by his service-connected disabilities? The term "aggravation" is defined as a worsening of the underlying disability beyond its natural progression versus a temporary flare-up of symptoms.
All opinions and conclusions expressed must be supported by a complete rationale in the report.
10. After completing the requested actions and any additional notification and/or development deemed warranted, the RO should review the expanded claims folder and determine whether service connection is warranted for hearing loss, an acquired psychiatric disability, other than PTSD (under both direct and secondary (including by aggravation) theories), diabetes mellitus, a vision disorder, and a left clavicle disorder as well as entitlement to a TDIU rating. If the benefits sought on appeal remain denied, the RO must furnish the Veteran and his representative an appropriate supplemental statement of the case. After they are afforded an opportunity to respond, the case should be returned to the Board for appellate review.
The appellant has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2013).
______________________________________________
ALAN S. PEEVY
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs